Divine right to discriminate

4 December 2018

Conservative parents might expect their children to have teachers who share their beliefs on sexuality.CREDIT:MICHELE MOSSOP

The relationship between church and state has always been uneasy. In the policy world, there are many points of intersection and, often, friction between secular and religious values. As Western societies become progressively more liberal, we can expect this friction to increase, as we see in the current conflict between anti-discrimination law and religious freedom. Many believers feel deeply threatened. Are they right to be concerned?

As they stand, anti-discrimination laws (state and federal) give quite wide protections to religious freedom, in the form of exceptions to the relevant laws. In these circumstances, to use the words of the Victorian Equal Opportunity Commission, religious institutions are able to discriminate on the basis of “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, where this discrimination conforms to the doctrines, beliefs of principles of the religion”.

That seems clear enough. But society is changing and there is considerable pressure on governments, state and federal, to wind back these protections. Labor and the Greens say they are sympathetic to at least some change. A recent Senate inquiry took a similar view. The churches say they do not want to discriminate; rather, they want a statement of religious values, which will present their stance in a more positive way.

In search of a compromise, the Turnbull government initiated a religious freedom review in November 2017, chaired by Liberal Party elder Philip Ruddock. Six months after the review’s recommendations were presented to the government, they have still not been officially released. As the Morrison government has shown by its tardiness, this is a minefield for any government, and a Coalition government in particular.

But what, exactly, is “religious freedom”? I had not heard of this value until comparatively recently. It is, like so many of our current cultural concepts, of American origin. The US constitution (via the first amendment) prevents the Congress from establishing any religion, and guarantees the right to practise one’s religion, free of any restriction by the state.

Traditionally, the US Supreme Court has interpreted the first part of the first amendment to mean that the state cannot legislate in support of any religion, which is why church-run schools in the US need to be funded by those who want to use them. There is an interesting contrast here between the two federations. While section 116 of the Australian constitution prescribes an equally strict separation of church and state, the Australian High Court has not seen this provision as inhibiting public funding of these schools. Religious freedom, Australian-style, means that not only are we free to choose our religion, the government will support our choice by subsidising faith-based schools.

But this easy pragmatism has produced a long and very porous boundary between church and state. With the legalisation of same-sex marriage, the contrast between the two value systems seems impossible to ignore. Conservative Christians (and I assume, all Muslims) disapprove of forms of sexuality that are prohibited in their sacred texts. Although homosexuality is no longer illegal, conservative Christians do not accept what we might call practising gayness. You can be gay, and be loved, but you are not supposed to act on your preference. Same-sex marriage clearly confronts this belief.

When it comes to schools, though, it is not just the churches that are involved. Parents pay substantial sums to send their children to religious schools. There is a wide spectrum of parental belief (and non-belief) operating here. Many, possibly most, want their children to be taught by professional teachers of competence and integrity, and would regard the sexuality or marital arrangements of their child’s teacher as irrelevant. On the other hand, conservative parents would not want their children taught by people who are practising a form of sexuality that is not biblically sanctioned, and would expect the school to which they send their children to respect this wish.

Which value should public policy support? If the Parliament passes a religious rights act, would that settle the matter, or would it simply inflame public opinion against the churches even more than it is already? In relation to employment, anti-discrimination law has at its base a fundamental value: we are not permitted to deny employment to someone because of attributes of which we might disapprove but which have no bearing on their ability to do the job in question. On the face of it, being a good teacher has nothing to do with one’s sexuality.

The churches got themselves into murky waters by not being prepared to acknowledge this simple fact. They have, knowingly or not, employed many gay teachers over the years, and some of these teachers would no doubt have been in a live-in relationship with a same-sex partner. Progressive religious schools have already said they do not want to be protected from anti-discrimination laws in relation to their employment practices.

But what about parents who, because of their religious beliefs, want their children taught only by people who are either heterosexual or celibate? Are they not entitled to assume that all the teachers have been vetted by the school?

Common sense would suggest that someone in a same-sex marriage would not wish to teach in a fundamentalist type of school. But some conservatives say that, without specific rights to discriminate, a feisty member of a same-sex couple might deliberately stir the waters by applying for a teaching position at such a school. When rejected, they would be able (if exemptions were to be wound back) to argue that the school had discriminated against them.

Are the churches right to be worried about this type of situation? Many in the churches are convinced that, without legislated protections, they will be targeted by activists out to prove a point.

As is so often the case, the extreme positions (on both sides) shape the debate. At the same time, we need to acknowledge that public opinion has shifted. I suspect those in the sensible centre would agree that church schools do not need to enquire about the family circumstances of their teaching staff. As with all institutions in contact with vulnerable people, the key issue for schools is that they are as sure as they possibly can be of the integrity of their staff. After all, they got themselves into trouble when they assumed that church membership alone would guarantee good behaviour.

I seem to remember that Jesus himself did not endorse discrimination. When asked to summarise his philosophy, he said his followers should love God, and love their neighbour as themselves. That seems pretty clear to me.

Dr Jenny Stewart is Honorary Professor of Public Policy in the University of New South Wales at the Australian Defence Force Academy. Jenny researches and writes in the fields of policy analysis, management and public sector reform. Jenny worked as a policy analyst in the Australian Public Service before joining the staff of the University of Canberra in 1993. She moved to UNSW@ADFA in 2009.

One Comment on “Divine right to discriminate”

Stable Genius

Great article, except it omits the key point, for those of us who declare as heathens at least. In crude funding terms, increasingly, the church schools are just government schools with crosses out the front. Already, most Catholic and many indie schools match (or nearly match) govies in combined Commonwealth-State funding, and the trend (see Jane Caro, Chris Connors) is only moving further in their direction. National legislation (thanks, Julia Gillard) says that the church-school sector is to move to 95-100% of its ‘total SRS’, with 80% coming from the feds.

Arguably then, what we have is a situation where the clearly government-preferred state schools (Type A) have a leave pass from anti-discrimination laws (not to mention the freedom to pick and choose among students generally) while the lesser Type Bs cannot discriminate against gay students or teachers, and generally have to take all comers among their students.

On top of that, the Type As can charge uncapped fees of their own, teach anti-gay and anti-female moralities, and then send their scriptures and subsidised ‘chaplains’ into the Type Bs. No wonder Marion Maddox called it a ‘one way’ accountability. I wish I could have some of that.